Court File and Parties

Orillia Court File No.: FC-10-215-01 Date: 2016-05-31 Ontario Superior Court of Justice

Between: Darren Frederick Smith, Applicant – and – Barbara Anne Ainsworth, Respondent

Counsel: Applicant, Self-Represented Michael F. Sirdevan, for the Respondent

Heard: May 16, 2016

Jarvis J.

[1] On February 4, 2011 the applicant father (“the father”) was charged with the attempted murder of the respondent mother (“the mother”) as well as aggravated assault and assault with a weapon (a butcher knife). The parties had a seven month old daughter. The mother’s six year old daughter from a prior relationship witnessed what happened. The mother was pregnant with the parties’ second child.

[2] The father was convicted after a jury trial and found guilty of the aggravated assault and assault with a weapon charges. He was found not guilty of attempted murder because specific intent beyond a reasonable doubt was not proven. Alcohol was a factor. A custodial term sentence of four years was imposed as well as a life ban from owning or possessing firearms.

[3] The father has not seen his daughter since he was charged and has never seen the son born after his arrest. In these proceedings he is asking for supervised access. The mother is opposed. She is fearful for her safety and concerned about possible physical and mental harm to the children. So is the local Children’s Aid Society (“the Society”).

[4] The following facts are relevant to the outcome of these proceedings:

(a) The father is 49 years old and the mother is 34 years old; (b) The father is aboriginal: the mother is caucasian; (c) There are two children of the parties’ relationship, B.A born July 21, 2010 and R.A born October 22, 2011; (d) It is unclear from the evidence when the parties met but, shortly before their daughter was born in July 2010, the parties began cohabiting; (e) The parties’ cohabitation was tumultuous. An Occurrence Report summary prepared by the local police records at least 15 attendances by the authorities between June and October 2010 for complaints identified as, primarily, “Domestic Dispute”. No charges were laid. Many of the complaints involved personal disagreements between the parties for which, in my view, resort to the authorities was inappropriate. No violence is reported: there are occasional references to alcohol; (f) In late October 2010 the Society became involved with the family. Around that time the father agreed to leave the mother’s residence. A Voluntarily Services Agreement (“VSA”) was signed – it provided that the father would be entitled to parenting time with his daughter at the mother’s residence. There were no supervision terms but the mother was mostly present when the father attended; (g) The VSA ended after February 4, 2011; (h) The father was not granted bail after he was charged; (i) On March 21, 2012 Wood J. made two Orders. The father was represented by counsel. One Order, made on consent, awarded the mother custody of the children (a son was born in October 2011 while the father was in custody) and provided that there be no access by the father so long as he was incarcerated and then afterwards only supervised access. No material change in circumstance need be proven. The second Order restrained the father from communicating with the mother or children, or being in their vicinity. Allowance was given for contact through counsel for, primarily, visitation purposes. The father was entitled to obtain information about the children from the children’s teachers, doctors or other professionals about the children’s general welfare; (j) The father spent 17 months in pre-trial custody before he was sentenced on July 10, 2012. He was released on March 24, 2014; (k) The father started this Motion to Change on September 11, 2014. Initially he requested access to all three children, which would have included the mother’s child from the previous relationship, but he abandoned that request when this trial began; (l) On December 17, 2014 Wood J. requested the involvement of Children’s Lawyer (“the OCL”); (m) The OCL consented to provide services pursuant to s. 112 of the Courts of Justice Act but could not complete its investigation because the restraining Order remained in place and the mother refused to allow the children to attend for an observation visit with the father; (n) On February 10, 2015 the father’s federal Parole Order ended. He had not been placed on a Probation Order afterwards; (o) On September 2, 2015 Wood J. acknowledged the OCL’s position and, because the Society was maintaining an active file on the family, endorsed in the Record that the Society had “agreed to investigation and provide an opinion as to whether the commencement of the access between [the father] and the children would pose a protection concern”’; (p) The Society undertook an investigation. On November 13, 2015, Wood J. recorded that the Society had “assessed the father as a moderate risk such that if access were to occur it should be supervised and in a therapeutic setting”. It was noted that Society requests to Corrections Canada for relevant risk information about the father had been ignored (and have continued to be ignored). The father consented to the release of this information.

[5] This is what the Society had advised the court in a letter dated November 6, 2015 that was before Wood J. on November 13th:

Should Mr. Smith be granted access, the Society would hold Child Protection concerns under the coding of the Ontario Child Welfare Eligibility Spectrum (October 2006) - Caregiver Has Problem Causing Risk that the Child is Likely to be Harmed, noted as Moderately Severe in the coding of the Ontario Child Welfare Eligibility.

Interpretation of this coding is as follows;

Specific parental characteristics such as physical and/or mental and/or behavioral factors can impair a parent's abilities to provide appropriate and adequate care of the child and/or place the child at risk for maltreatment. For example, as a result of the parent experiencing symptoms of affective, somatic or behavioral distress, the parent may be incarcerated, institutionalized, a substance abuser, exhibiting a personality disorder or psychiatric disturbances.

The coding of Moderately Severe of the Ontario Child Welfare Eligibility is based upon the mother, Barb Ainsworth being the primary caregiver to the children, and should the father, Darren Frederick Smith's access to the children be granted, the access would be limited and in a controlled setting.

As it relates to the Child and Family Services Act, the Society would suggest a finding under 37(2)(g)

There is a risk that the child is likely to suffer emotional harm of the kind described in sub clause (f)(i),(ii),(iii),(iv),or (v) resulting from the actions, failure to act, or pattern of neglect on the part of the child's parent or person having child of the child.

[6] Attached to this was a letter from a psychologist whom the father was consulting and who had diagnosed with the father with a major depressive illness as well as social anxiety.

Father’s Evidence

[7] The father was born in Alberta and for all but four years of his life before he was sentenced in 2012 he lived separate from the Rama First Nation. He came from a home of substance and spousal abuse. Alcohol abuse has figured prominently in his life. He has worked many different jobs, mostly as a journeyman labourer. In 1990 he lost his right arm in a motorcycle accident. He was intoxicated. Between 1990–1997 he was receiving disability benefits and, afterwards, worked a series of odd jobs, the duration of which was unclear from his evidence. Despite having a dated criminal record, the 2011 offence of which the father convicted was the first instance of a violent crime.

[8] The father had testified that he understood the mother’s reasons for opposing his having any contact with the children but maintained that a criminal conviction ought not to foreclose all parental contact. I agree. It was troubling though that while acknowledging his conviction, he disclaimed responsibility for his actions and expressed no remorse. He maintained that he did not attack the mother. The impression left with this court was not unlike the impression left with Howden J. at the father’s sentencing hearing in July 2012,

…Mr. Smith, in my view, still fails to accept responsibility for his conduct. He is sorry for what happened, and that is all well and good, but as the PSR (i.e. Pre-Sentence Report) noted and his silence to [Crown counsel’s] question on this point and his words to this court demonstrate, there is no real remorse and acceptance by Mr. Smith that it was his intentional conduct that cut [the mother] deeply on her face and that he and his angry conduct are responsible for those scars. He treats it like damage inflicted by a bad storm or a force unrelated to him. So he can say he is sorry it happened and that [the mother] is scarred but not that he takes any responsibility for attacking her with a knife and intentionally causing her wounds. They just happened.

[9] Nothing, it seems, has changed.

[10] The father testified that while incarcerated he took a number of courses on aboriginal family violence, substance abuse, community maintenance and was several credits short of successfully obtaining a grade 12 diploma. After his release he discontinued any self-help courses or studies. In late 2014 he was granted disability benefits and began receiving those in early 2015. He acknowledged that he continued to consume alcohol, although not to excess.

[11] A psychologist reported to the Society in November 2015 that in addition to her diagnosis of the father’s depressive illness and social phobia

[The father] has attended scheduled appointments on a regular basis. He has also attended the support group for managing depression offered through the Couchiching family heath team.

He has at times suffered significant suicidal ideation but identified that he would not do this because of his children.

He did not report to me any intention or fears of harming anyone else.

[The father] has been forthcoming about the fact that he does use alcohol socially at this time. He tells me that he is managing his alcohol use responsibly at present.

It would appear that alcohol abuse has been a significant issue in the past, and it might be prudent for [the father] to see a substance abuse counsellor on a regular basis to help him maintain the progress describes.

He has frequently expressed concern about his children and it is his persistent hope is to be able to see his children again.

[The father] has consistently presented as a pleasant and cooperative man who is very articulate and has made positive efforts to moderate his depression by staying as active as possible. He has also confronted his social anxiety significantly by attending the group program at the Couchiching family health team.

[12] The father testified that the main reason for asking for access is that he did not want to make the same mistake that he had made with his two sons from an earlier relationship. They were 26 and 17 years old at the time of this trial. In proceedings over ten years ago, the father had agreed with those children’s mother that he would not press to have any contact with them, that they could contact him if they wished. He has had no contact with the youngest son for over ten years and, with respect to the older son, he has encountered him on the street on about six occasions during that time, and they briefly spoke.

[13] What, he testified, he could offer the children in this case was his love, pass along some of his life skills, and family history.

Mother’s Evidence

[14] The mother met the father at a bar many years before they began cohabiting. In May 2010 the father moved to her residence and, despite the number of police attendances there, she described the parties’ relationship as good until the attack. The Society was temporarily involved around the time that the parties separated, and the Society has an open file now on her family, although not for any outstanding protection proceedings. She re-partnered not too long after the attack and has two more children, although only one of them is her current partner’s biological child. She has not worked outside the home since 2010.

[15] The mother testified that she hated the father and remained fearful of him. Her oldest child (not the father’s biological child) who had witnessed the attack on her mother had counselling afterwards and also remained afraid of the father. While the mother acknowledged that children should know their parents, the mother maintained that the father had lost his parental rights because of his crime.

[16] Ken Dube, a family service and child protection worker with the County of Simcoe testified. He has worked for the Society since 2001 and was involved with the family in late 2010/early 2011 with respect to the VSA. He was the author of the Society’s November 6, 2015 earlier referenced in these Reasons.

[17] In a subsequent January 5, 2016 letter to the court Mr. Dube reported that he had canvassed the availability of community options in the event that, despite the Society’s protection concerns, an order for access was made. A fee for service option was impossible because both parents were social assistance recipients. Nor were there available counselling services through the Society’s community partners. The Society would be prepared, though, to provide through its Therapeutic Access program to prepare the children for access if ordered. This would involve an assessment (although not an assessment under s. 30 of the Children’s Law Reform Act) prior to determining parental deficiencies and developing a service plan to deal with identified parenting challenges. Because this service is intended for children in foster care or for kinship placements, and would be outside the normal scope of its mandate, there would be a six to nine month wait. This process would involve four - eight sessions including the parties and the children, after which there would be an assessment to ascertain what would be needed to parent without the Society’s involvement. Mr. Dube acknowledged that this family had a “legacy” that the Society could not ignore.

Analysis

[18] Section 24 of the Children’s Law Reform Act requires that the merits of an application for access shall be determined on the basis of the child’s best interests. Those are identified in subsection 24 (2) as including,

(a) the love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[19] The primary focus is the child. As Abella J. (as she then was) stated in MacGyver v. Richards (1995), 22 O.R. (2d) 481 (C.A.) it “is the child’s right to see a parent with whom [the child] does not live, rather than the parent’s right to insist on access to that child.”

[20] In V.S.J. v. L.J.G. (2004), 2004 ONSC 17126, 5 RFL (6th) 319 (Ont. S.C.J.) the court was tasked with determining whether a father’s access to a child should be supervised or terminated. Blishen J. observed,

128 There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. To deny access to a parent is a remedy of last resort. See Jafari v. Dadar, [1996] N.B.J. No. 387 (QL).

129 A review of the case law reveals that there are no standard criteria for termination of access within the best interests test. Madam Justice Abella noted in para. 34 of M.(B.P.) v. M.(B.L.D.E.) (1992), 1992 ONCA 8642, 42 R.F.L. (3d) 349 (QL) (Ont.C.A.):

It is not a question of what standard should be used to deprive a parent of access, it is a question of what standard should be used in deciding what form of access, if any, should be ordered. The answer is clear from the statute: the standard is the child’s best interests.”

[21] In Kroupa v. Stoneham, [2011] O.J. No. 4350 2011 ONSC 5824, a father consented to a final Order terminating his access to his four year old son. One and a half years later he brought a Motion to Change for access. Relying on MacGyver and V.S.J., Gray J. concluded that, while the father’s past drug-fueled behaviour and refusal to pay child support were “less than exemplary”, these were not sufficient reasons to deprive the child of the right to access with his father. A period of transitional supervised to unsupervised access was ordered.

[22] In Dhaliwal v. Dhaliwal, [2015] O.J. No. 5152 2015 ONSC 6172, the father had no contact with his six year old son for about two and a half years. While the reasons for non-contact were unclear it was “common ground…that, at some point, Mr. Dhaliwal had a significant substance abuse problem.” Transitional supervised access was ordered coupled with regular drug testing and family counselling, all to be monitored by the court.

[23] The father is seeking an order for supervised access. That is the plan. However, supervised access, as Blishen J. observed in V.S.J., “is seldom viewed as an indefinite order or long term solution”. It is an appropriate solution to consider to,

“…protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children.”

[24] Supervised access is, at best, a short term expedient while a range of other initiatives are explored to regularize a parenting relationship.

[25] The mother opposes any contact between the father and children because any such contact would not benefit the children. It is not enough, she maintained, that access would not harm a child. There must be more. It was clear from her evidence that she was vehemently opposed to any form of access, although the impression she left with the court was that her position had more to do with her animosity toward the father than any thoughtful consideration whether access could be beneficial to the children.

[26] Would any form of access benefit the children, particularly in the circumstances of a case like this where neither child has had any meaningful relationship with the father for over five years (the younger child has had none)? What principles should guide the court?

[27] In Griffiths v. Leonard, 2010 ONSC 4824 Blishen J., observed that, in circumstances where there had been a long period of no parent-child contact, the benefit of access had to be significant.

[35] Access should only be ordered if there will be a benefit to the child. It is not sufficient for the non-custodial parent to show that access will not harm the child. This is too low a threshold. (see Worthington v. Worthington, 2000 ONSC 22469, 13 R.F.L. (5th) 220 (ON S.C.).) There must be some demonstrable benefit to the child and, in this case, given that Nicolas has been an absent father and that Isabelle does not in any way have a beneficial or meaningful relationship with him, the demonstrable benefit to her must be significant, particularly given that the custodial parent objects to involving Nicolas in Isabelle's life at this time. As was stated by Madam Justice L'Heureux-Dube in Young v. Young (, [1993] 4 S.C.R. 3) there is a presumption that once custody has been determined, that parent will act in the best interests of the child. [Emphasis added]

[28] The evidence in this case is that neither child knows the father. They are living in what appears to be a stable home environment. The older child has a moderate learning disability while the younger child is meeting developmental milestones. The Society has no concerns about the mother’s partner. The mother adamantly opposes access.

[29] The father is articulate. Those involved with him have noted his efforts to deal with his psychological challenges. There was no evidence of any further contact with the authorities after his Parole ended. He was respectful at trial and impressed the court with the sincerity of his desire to have access to the children. But there is no evidence of any effort by him after he was released from jail to maintain the initiatives in which he participated while he was incarcerated nor any evidence of pro-active steps being taken by him to help deal with the significant challenges that access would present to the children, if ordered.

[30] There is insufficient evidence in this case that access would benefit the children in any meaningful, let alone significant, way and so the father’s application must be dismissed. Biology alone does not trump a child’s best interests. The Order I propose to make though will, nonetheless, give him the opportunity to share with the children what he wishes about his life and his, and their, heritage. I see little reason to continue the restraining Order made by Wood J. dated March 21, 2012. There is no evidence that the father has been involved in any conduct of a violent or threatening nature since February 2011 and, as he testified, the Order amounted to a sentence (as he saw it) of house arrest in the community.

Disposition

[31] For reasons given, the father’s application is dismissed.

[32] Paragraph 4 of the Order of Wood J. dated March 21, 2012 dealing with the mother’s obligation of advising the father of any residence change outside of the City of Orillia shall remain in full force and effect.

[33] The Restraining Order of Wood J. dated March 21, 2012 is terminated.

[34] The mother shall within 90 days of the date of release of this Order provide to the father the contact particulars of the professionals involved with the children including, without limiting, the children’s teachers, doctors or other health professionals. The father shall be entitled to contact these professionals to obtain information about the health, education and general welfare of the children.

[35] The father shall be entitled, once a year, to provide to the mother, within reason, by letter or other means what he wants to share with the children about his life and his and their heritage. The mother shall provide this to the children when, in her opinion, that would be appropriate. She is to preserve what the father provides to her until further Order of the court.

[36] This is not an appropriate case for costs.

Justice D.A. Jarvis Released: May 31, 2016